an inquiry into and settlement of the means of extending the solution fixed upon to other international rivers.

As to the bases of the understanding, they correspond to the probable causes of conflict, which are to be found in (i) exclusions from the navigation of the river; (ii) the fiscal policy of certain States. In consequence, Article V proclaims (1) that the navigation of the river shall be free and shall not be forbidden to any one; (2) that the dues on navigation shall be regulated on the principle of strictest equality, and in the manner most favourable to the commerce of all nations.

1

§ 12. Proceedings of the Congress of Vienna, 1815.

Such was the problem, as it was presented to the plenipotentiaries of the Congress of Vienna. They entrusted the working out of its solution to a Committee of Navigation, which, having decided to deal with the Rhine first of all, invited the plenipotentiaries of the riparian States of this river to attend.3

2

At the first sitting, the Duc de Dalberg presented a project agreeable to Article V of the Treaty of Paris and inspired mainly by the Convention of 1804. It created between the two Empires a sort of community with regard to commerce and navigation, in which it saw the most effectual means of ensuring freedom of navigation and satisfactorily settling the fiscal question. This project was accepted as the basis of discussion at the second sitting (Feb. 8). But, from the first, Prussia refused her assent to the principle of a com

1 On the interpretation of this clause, see Kaeckenbeeck, International Rivers, § 45. Both Great Britain and France have relied on this Article to support the claim of non-riparian Powers to free navigation.

2 Consisting of the Duc de Dalberg (France), Baron von Humboldt (Prussia), Lord Clancarty (Great Britain), and Baron von Wessenberg (Austria).

3 Viz. Holland, Bavaria, Baden, Hesse-Darmstadt, and Nassau.

munity; and the French project based on it had practically been destroyed by the end of the fifth sitting, when Baron von Humboldt engaged to prepare a new draft.

Immediately after the presentation of the French project, Baron von Humboldt read a memorandum preparatory to the work of the Commission. While acknowledging that Article V of the Treaty of Paris is to be the basis of the work of the commission', Baron von Humboldt suggests that it is first of all necessary to consider the principles which the general interest of commerce make it expedient to adopt'. This is the starting-point. The connexion which exists between navigation and the general interest of commerce prepares the way for a confusion which will make it possible to distort the true scope and meaning of Article V while preserving its essential terms. Having thus, so to say, substituted the principle of the general interest of commerce for Article V of the Treaty of Paris, Baron von Humboldt, in order to reconcile the general interest of commerce with the interest of the riparian States, proceeds to reject the consequences of his principle unless the three following conditions are complied with: (i) that they should be agreed upon by the common consent of all the riparians; (ii) that no riparian State should be disturbed in the exercise of its rights of sovereignty, in respect to commerce and navigation, beyond the stipulations of this convention'; (iii) that every riparian State' should be entitled to its share of the dues collected on navigation in proportion to the extent of its territory along the banks of the river'.

6

Under these three conditions, von Humboldt deems it possible to assent to:

(1) freedom of navigation; 1

1

1 He abstains from adding, in compliance with Article V, that the navigation shall not be forbidden to any one.

(2) the abolition of staple duties (droits d'étape); (3) a uniform tariff of the dues to be collected; (4) the reduction of the number of offices for their collection;

(5) the absolute separation of the collection of customs duties and of navigation dues;

(6) the appropriation of the receipts of dues to the works necessary to navigation; 1

1

(7) the unification of the police regulations;

(8) mutual engagements to provide, so far as possible, for the maintenance of free navigation even in case of war between the riparian States.2

Finally, Baron von Humboldt examines the means of extending these provisions to all international rivers (cf. infra, p. 23). His memorandum is a real explanatory introduction to the decisions of the Congress.

Other memoranda were also read; many observations were made concerning technical points; and the numerous acquired rights, interests, and privileges alleged served to render the task of the Commission increasingly difficult and intricate, and to obscure the clear directions of Article V.

§ 13. Free navigation for all flags or for riparians only? Although the words of Article V de telle sorte qu'elle [i. e. la navigation] ne puisse être interdite. à personne', were reproduced in the Duc de Dalberg's project, Lord Clancarty proposed a still more explicit wording: viz.

'Le Rhin

sera entièrement libre au commerce et à la navigation de toutes les nations de manière qu' il ne puisse, sous ces deux rapports, être interdit à personne

1 The surplus to be dealt with in accordance with condition (iii) above.

2 Most of these principles, von Humboldt himself observes, are to be found in the Convention of 1804 a very good piece of work, the utility of which has been proved by experience.'

This was emphatic, perhaps too much so for Baron von Humboldt, who, having subordinated the principle of free navigation to the general interest of commerce, seems to have seized the opportunity of trying, while preserving the words of Article V, to obliterate their true meaning by means of the interpolation: sous le rapport du commerce.' His wording is at least equivocal.1

Lord Clancarty protested, and again proposed his amendment.

But the other members of the commission were of opinion. that there were no grounds for making this amendment "vu que la rédaction de M. le baron de Humboldt ne semble pas s'éloigner des dispositions du traité de Paris" which had for their object merely the preservation of the navigation from such impediments as a conflict between the riparian States could bring about, and not the granting to all subjects of nonriparian States an equal right of navigation with that enjoyed by the subjects of the riparian States and in return for which there would be no reciprocity.' 2

Unfortunately, this decision, taken by diplomatists who, at the time, thought of nothing but the Rhine, was to be the basis of Article CIX of the Final Act of the Congress of Vienna, which was applicable to all international rivers.

1 It runs: 'The navigation of the Rhine . . . shall be entirely free, and shall not, in respect to commerce, be prohibited to any

one.

2 Protocol of seventh Conference (March 3). This interpretation of Article V runs counter to the very terms of the Article. To fix the degree of authority it possesses, one must remember: (1) the composition of the Commission (supra); (2) that out of the four delegates of the Congress, two-the British and the French-opposed it. The fact that the French plenipotentiary soon ceased to insist is explained by reference to his instructions, which saw in free navigation with moderate dues only an equivalent for the possession of the riparian provinces which France had renounced. Kaeckenbeeck, International Rivers, § 53.

§ 14. The Navigation of the Rhine.

The discussions of the Commission of Navigation resulted, first, in the adoption of thirty-two Articles concerning the navigation of the Rhine.1

The Article concerning the right of navigation (Article I) was that proposed by Baron von Humboldt, with the equivocal restriction sous le rapport du commerce. Articles II, III, IV provided for a fixed, uniform, and invariable system of dues and uniform police regulations for the whole river, and, so far as circumstances might permit, for its tributaries. These dues were to be collected in twelve offices by each riparian State separately (Articles V, VI). In addition to the judicial authorities of 'first instance' attached to each of these twelve offices, each State had to establish a tribunal of 'second instance'. Appeals might be brought to such tribunals or to the Central Commission (Articles VIII, IX).

The Central Commission, composed of delegates from the riparian Powers and sitting once or twice a year, was meant to preserve unity and uniformity (Articles X, XI). It had to exercise a kind of general supervision and to attend to the general 'interests of navigation and commerce (Article XVI). The decisions of its members-mere agents of the riparian States--were not binding upon the States without their consent (Article XVII).

As a permanent authority, there were to be one chief inspector and three sub-inspectors (Articles XII, XIII, XIV, XVIII) whose duties were to organize the police of navigation, see to the execution of the Regulations, send reports to the Central Commission, and inform it of the state and defects of navigation, &c. (Articles XV, XVI). Certain dues and all monopolies were

1 For an analysis and comparison with von Humboldt's memorandum, see Kaeckenbeeck, International Rivers, §§ 55-64.